Questions?

1.26.2011

The Iraq Federal Supreme Court (FSC), following a petition by Prime Minister Maliki’s office, has just ruled that independent commissions such as the Independent High Electoral Commission (IHEC) and the Central Bank of Iraq are to be attached to the executive branch. The ruling would seem to contradict the 2005 Constitution’s Chapter on Independent Commissions, which makes IHEC (as well as the Human Rights Commission and Public Integrity Commission) “subject to monitoring by the Council of Representatives” (the Iraqi Parliament). (Art. 102) The Central Bank is similarly made “responsible before the Council of Representatives.” (Art. 103) Despite this seemingly clear language, the FSC found Articles 102 and 103 ambiguous and ruled that the “nature” of IHEC’s and other similarly situated commissions’ work is “executive” and that “the subordination to the legislature contradicts the principle of separation of powers.” See, Iraq and Gulf Analysis, http://gulfanalysis.wordpress.com/2011/01/21/the-first-policies-of-the-new-maliki-government-attaching-the-independent-electoral-commission-to-the-executive/

From a legal standpoint the ruling is curious in that it uses a constitutional principle (separation of powers) to declare a constitutional provision unconstitutional. The ruling is even more tenuous in light of the fact that the Constitution attaches other institutions in the Independent Commissions chapter, such as the Endowment Commissions (Art. 103) and Martyr’s Foundation (Art. 104), to the Council of Ministers (the Iraqi executive) -- evidencing thought and consideration by the drafters on which commissions should be responsible to the legislative branch and which to the executive.

The ruling would also seem to run afoul of the growing political preference in the wake of the March 2010 elections to disperse power within the executive branch and away from the Prime Minister’s office, as evidenced by a range of power-sharing proposals by Iraqiyya, the Kurdistan Alliance and ISCI during the government formation process. And finally, it contravenes the clear intentions of the previous parliament to clarify and solidify both the independence of the commissions and their relationship to the legislature. For example, the final report of the 2007 Constitutional Review Committee (of which all major political parties were members) included provisions that state:

• “Independent commissions shall be subject to the oversight of the Council of Representatives.” • “Independent Commissions shall submit their annual budget and final accounts to the Council of Representatives after being scrutinized by the Board of Supreme Audit.” • “The approval on appointing the heads of Independent Commissions shall be by the Council of Representative, by absolute majority of its members.” • “. . . Heads of Independent Commissions shall be relieved by the Council of Representatives, by absolute majority of its members . . .” • “An Independent Commission shall be cancelled by the Council of Representatives, by two thirds majority of the number of its members.” • “The Federal Government . . . shall support the work of Independent Commissions in order to succeed in their tasks, with consideration to the independency of these commissions.”

The ruling has already generated substantial controversy in and outside Iraq, some critics going so far as to describe it as a “coup.” See, http://www.reuters.com/article/idUSTRE70M1MV20110123

The actual impact on the commissions themselves will not become clear until more is known about how the executive will manage/oversee them. Over the past two decades, the concept of the independent commission has taken on increased prominence in a growing number of constitutions and states. Commentators now often refer to them as a “4th branch” of government and the “integrity” branch by virtue of their role as protector of the system of government itself, its neutral monitoring, the promotion of transparency and accountability, and to make sure that politics is conducted on a level playing field. To effectively assume this role independent commissions require legal, political, financial and administrative independence, and must be insulated from partisan politics and the wishes or self interest of the executive or ruling party.

The Constitutional Review Committee amendments were intended, first and foremost, to constitutionalize these principles. At a time when Iraqis identify corruption as one of the most serious problems facing the nation; when one considers the pressure put on IHEC during the March 2010 elections cycle by virtue of contentious Debaathification decisions and the Prime Minister’s allegations of the manipulation of results by the electoral commission and demands for a recount; and the existential threats facing Iraq’s Christian and other minority communities – Iraq needs to protect and indeed bolster the independence of the Commission for Public Integrity, IHEC, the High Commission for Human Rights, and other commissions vital to the health of Iraq’s nascent democracy. Unfortunately, there are legitimate reasons to fear that the Federal Supreme Court’s ruling will instead further politicize and undermine these institutions.

3 comments:

Jason - Thanks for this post. Do you know if there is are examples in other constitutional systems where constitutional courts or federal courts have declared specific constitutional provisions to be unconstitutional?

Zaid - It would probably be more accurate to say the court tried to reconcile two seemingly contradictory or inconsistent constitutional provisions, which is quite common. What is stark in this case is that in doing so the FSC ignored two frequently utilized principles of constitutional interpretation. The first is whenever possible to reconcile the two provisions so as to avoid the conflict altogether. The FSC did exactly that in its 2007 opinion on provincial powers (reconciling Articles 115 and 122). It seems to me this would have pointed towards upholding the explicit constitutional language attaching the commissions to the legislature (by finding no inherent separation of powers conflict). If, however, the Court found the conflict unavoidable, a second principle of constitutional interpretation is that specific language controls over general language. This also would have counseled in favor of the status quo.

Interestingly enough I wanted to ask the same question as Zaid. In Bosnia there were several attempts by different parties to have some provisions of the constitution declared "unconstitutional" (or rather void) since they are clearly discriminatory (and thus in contradiction with non-discrimination provisions of the constitution, and international obligations that have priority over "all other law"), but the CC has repeatedly underlined its role of the guardian of the constitution in whatever it says.